One of Philadelphia's bellwether cases in litigation over whether the maker of the drug Paxil failed to warn about an increased risk of suicide from its drug has been dismissed following a Common Pleas Court judge's decision to grant summary judgment on statute of limitations grounds.
Collins v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline survived summary judgment in March when defendant GlaxoSmithKline argued that the doctrine of federal pre-emption precluded the plaintiffs from pursuing their state products liability claim.
While Judge Allan L. Tereshko, coordinating judge of the Complex Litigation Center, denied summary judgment on the grounds of federal pre-emption in March, Tereshko granted summary judgment on the more run-of-the mill grounds regarding Pennsylvania's statute of limitations Oct. 29.
Tereshko did not write an opinion about his decision to grant summary judgment on statute of limitations grounds. The judge's order dismissed all of plaintiffs Mary, Kristin and Dwayne Collins' claims of wrongful death, survival, negligence, negligent infliction of emotional distress, strict liability under the Maryland Products Liability Act, fraud, negligent misrepresentation, loss of consortium and punitive damages.
The wife and children of Bobby R. Collins alleged that the Paxil prescribed to Bobby Collins for stress-related depression did not have an adequate warning of possible suicidality from taking the drug. Bobby Collins committed suicide Feb. 14, 2002.
Plaintiffs' attorney Bijan Esfandiari, a Los Angeles attorney with Baum Hedlund Aristei & Goldman, said that if Tereshko had granted summary judgment on pre-emption grounds, it would have had a huge effect on all Paxil cases, but granting summary judgment on statute of limitations grounds shouldn't have a big effect on the other cases.
Without an opinion from the court, there's no way to know why the court found grounds to dismiss the case under Pennsylvania's statute of limitations, Esfandiari said. But he said he believes the case won't have much precedential value without an opinion revealing why the judge made his ruling.
"It's very difficult to know why you lost when there is no memorandum opinion," Esfandiari said. Esfandiari said he found a more illuminative precedent in the recent federal Eastern District of Pennsylvania ruling against most defense motions for summary judgment in another of his firm's Paxil cases, Knipe v. SmithKline Beecham, which involves a New Jersey teenager who committed suicide after using Paxil.
Esfandiari said he is "90 percent confident" Tereshko's ruling will be appealed.
There are 47 cases pending in the Philadelphia Paxil program, according to Stanley Thompson, the director of the Complex Litigation Center.
Of the Paxil cases filed in Philadelphia Common Pleas Court, Collins was one of the closest to going to trial, Thompson said, as one of eight bellwether cases in a pool being prepared for trial. The plaintiffs' claims were time-barred because they failed to file their lawsuit within the two-year statute of limitations that started from Collins' Feb. 14, 2002, death, according to GlaxoSmithKline's Sept. 5, 2007, memorandum in support of its motion for summary judgment.
Collins was prescribed Paxil Jan. 9, 2002, following a visit with a psychiatrist at Georgetown University Hospital, the brief said. Paroxetine, or Paxil, is a selective serotonin reuptake inhibitor, or SSRI, which regulates the level of the brain chemical, or neurotransmitter, serotonin and which is believed to help reduce depression, according to the master long form complaint regarding cases in the Paxil mass tort program.
Collins, a Maryland resident, ex-police officer and an employee at the Smithsonian, was undergoing a number of "psychosocial stressors," including the death of his twin brother, job conflicts, a diagnosis of ulcerative colitis and his wife's diagnosis with breast cancer, the defense’s brief said.
Plaintiffs argued that under Maryland law, a three-year statute of limitations should apply, and that GSK agreed to toll any claims in a January 2005 tolling agreement, Esfandiari said in an interview. The plaintiffs' brief regarding the summary judgment motion was filed under seal because it addresses information GSK considered confidential, and it is up to GlaxoSmithKline to consent to its release,
Esfandiari said. A GSK spokeswoman did not respond by press time to the request The Legal Intelligencer made Thursday afternoon about the plaintiffs' brief. The spokeswoman also did not respond to a request for comment on this case.
GSK also said that the tolling agreement is both irrelevant and had expired almost one year earlier than the Feb. 7, 2007, initiation of this lawsuit.
GSK also said that Pennsylvania’s statute of limitations barred the plaintiffs’ claims because the shortest statute of limitations from different jurisdictions must apply to the claims, according to its brief.
"Plaintiffs chose to bring their lawsuit in Pennsylvania, a state that has a shorter statute of limitations than Maryland," GSK said in its reply brief. "When they did so, they threw themselves into the lion's den and the express language of the tolling agreement that preserves the legal status on both sides and expressly allows GSK to assert all affirmative defenses that existed at the time the parties agreed to the tolling agreement."
The plaintiffs also argued that even if Pennsylvania's two-year statute of limitations applied, the statute of limitations was tolled because of the fraudulent concealment doctrine, Esfandiari said. Bobby Collins' wife, Mary Collins, contacted Georgetown University Hospital regarding her husband's death, but Georgetown said there was nothing out of place with Bobby Collins' care, Esfandiari said. It was not until 2004 and 2006 when GSK sent letters to the medical profession regarding the link between Paxil and suicide that Mary Collins first learned that Paxil might have contributed to or caused her husband’s suicide, Esfandiari argued.
He said without an opinion from Tereshko, he is not sure if the judge concluded that GSK didn't commit fraud, concluded that the tolling agreement was invalid or concluded that the plaintiffs didn't do enough to discover the link between Paxil and suicide.
GSK said in its brief that the doctrine of fraudulent concealment couldn't save the plaintiffs' claims because the plaintiffs failed to "exercise the requisite diligence to learn the alleged cause of Mr. Collins' death." Besides writing the letter to Georgetown University Hospital, Mary Collins did not make any other effort to determine the cause of her husband's suicide, and the deep grief she professed is not enough reason for her to not fulfill her legal duty to investigate the cause of her husband's death and bring a timely legal claim, GSK’s brief said.
While GSK disputes that Paxil causes suicidal behavior, there was plenty of publicly available information about the alleged connection between Paxil and suicide, GSK’s brief said. The plaintiffs' expert, Dr. Joseph Glenmullen, also noted that there was extensive medical literature regarding the alleged link, GSK said.
"There was nothing secret about the debate over SSRIs and suicidality. ... Plaintiffs simply sat on their rights. They cannot now invoke the doctrine of fraudulent concealment to save their belated claims," GSK’s brief said.
Defense co-counsel include Andrew Bayman, national trial counsel for GlaxoSmithKline's Paxil litigation and with King & Spalding in Atlanta, and Joe O'Neil and Carolyn McCormack with Lavin O'Neil Ricci Cedrone & DiSipio. Lawyers from Dechert were formerly local co-counsel.